Court Actually Wrote This…

Upon encountering a case with a relevant issue, I have always made it a point to read the entire case. I always tried to read the whole thing, even the parts that were not relevant to my specific issue.

When I was starting out, everything was something I needed to know about. It usually didn't take long for the “non related” issues to pop up in other cases I had.

It was like “bonus” learning.

This is how I found this gem in today's case. The court wrote:

“As a final matter, we commend defendant's trial counsel, Lindsay Evans, for her work in this case. It is clear to us, based upon Ms. Evans' well-developed legal arguments and intricate cross-examination of the State's expert witnesses, that she engaged in exemplary pretrial preparation to become familiar with the pertinent legal and factual issues of trial. Both defendant and the trial court were well served by her efforts.” ¶ 103.

Isn’t that cool!

How often does that happen? Try never.

It's Usually All Bad News

I make a big deal about attorneys getting thrown under the bus all the time.

Usually, the reason is for not making the right decisions under very tight time constraints with complicated issues. So it’s extremely nice to see the appellate court go out of its way to recognize an attorney who has shown excellence in court.

The nature of our business is that all the bad stuff is what is written about and highlighted.

I don’t know attorney Lindsay Evans, but I bet she has a long history of being great in court. And although, she doesn’t do what she does for recognition, it is nice to see it when it happens.

We are all plugging away getting better at what we do, and for the most part, it will go unnoticed. My best cross-examination or closing arguments have been in empty courtrooms. So thank you Fourth District Appellate Judges for recognizing good lawyering when you see it.

Now I don’t think Lindsay Evans listens to this podcast or that she even knows about it. But if anyone done there in Sangamon county sees her in court make sure to congratulate her.

Facts of the Case

Ok….So what was the case about?

It is a shaken baby case. Defendant’s two month old daughter sustained serious brain injury after being violently shaken by Defendant.

Defendant acknowledged the shaking but insisted he didn’t think he was hurting the baby because:

She was not crying during the shaking

He said he didn’t want to hurt his baby

He felt horrible about it.

As you can imagine, the case featured expert witnesses. Here though, the defense did not have their own expert. They essentially, recognized the extent of the injuries, and counsel focused her cross on making sure the State’s doctors kept their opinions limited to what the medical literature says was the limits.

Central Issue

The central issue in the case, was not whether defendant did it or not. Instead, the Defendant's mental state at the time of the shaking was the main item in dispute.

The state’s position was that his mental state did not matter so much. They contended that if he “knowingly” shook her then is guilty of aggravated battery to a child. The prosecution did not want the jury to get the definition of “knowingly.”

Defense position was that, of course his mental state mattered. Defense counsel disagreed and argued that the State had to prove defendant was

consciously aware that his conduct [was] practically certain to cause great bodily harm.” ¶ 49. The defense wanted the jury to be instructed on the definition of “knowing” conduct. Additionally, the defense was asking for the lesser included offense of reckless conduct.

Trial Court's Findings

The trial court sided with the prosecution.

The judge denied the lesser included and even denied giving the jury the instruction on “knowingly.” Imagine, being in the heat of a trial, and knowing you are correct on an important issue and being told by the court that …

“you're going to feel the weight of the court come down on an objection that the court has previously made a ruling on[,] if in fact you argue that point in closing argument.” ¶ 39.

So, defense counsel had to take it and just sit there when reversal error was occurring before her eyes.

The State Said What…

Specifically, the State was saying that the “knowingly” element applies only to the actions the defendant performs, not the bodily harm resulting from those actions.

In other words, they only had to show that he was knowingly shaken the baby, not that he “knowingly” wanted to harm her.

In closing, the state told the jury:

“We do not have to prove that when he committed these acts, that he knew the extent of what her injuries would be.” ¶ 42.

Well, this was wrong.

The appellate court reversed the conviction and remanded for a new trial trial, in large part, because of this error.

What Was Going On

On the one hand, one could ask: “How could the IPI on ‘knowingly' not have been given to the jury?”

Not only that, but the trial judge then just allows the State to define the term their own way that would, of course, lead to a conviction.

To be fair to the State and the trial judge, we do know that there is a difference between knowing conduct and intentional conduct.

Difference Between Intentional and Knowing Conduct

Knowing conduct is generally considered to be something less than intentional conduct.

But maybe the point of this case is to highlight that the difference may not be that great at all.

A person acts intentionally to accomplish a result or engage in conduct when his conscious objective or purpose is to accomplish that result or engage in that conduct.” IPI 5.01A.

Compare that to the Illinois Pattern Jury Instruction on the definition of “knowing” conduct, which says:

“A person acts knowingly with regard to the result of his conduct when he is consciously aware that such result is practically certain to be caused by his conduct.” IPI 5.01B.

Looking at those definitions, a clear practical difference is hard to identify. On top of that, the comments to both instructions say that …

“The Committee takes no position as to whether this definition should be routinely given in the absence of a specific jury request. … that the words “intentionally” and “knowingly” have a plain meaning within the jury's common understanding.” IPI 5.01A & B.

Judge's View

The judge is sitting there thinking, “these words have a plain meaning and I don’t have to give these instructions.”

Prosecutor's Perspective

Meanwhile the prosecution, is sitting there knowing that “knowingly” has to be something less than “intentional”. They just won the motion barring the defense from using the IPI definitions for these terms. So, it probably felt like the wild west for legal vocabulary.

This seemed like the right environment for things to go wrong.

Thus, they define the term in their closing in a way that that separates the term more starkly from intentional conduct and that increased their chances of winning. We know, now, the way the prosecution sculpted the definition was wrong.

How Should The Mental State Have Been Applied?

When we look at the crime of aggravated battery to a child. We see that it is results oriented.

I’m going to paraphrase it here, but a person commits an aggravated battery to a child when he by any means causes great bodily harm or permanent disability to any child. See 720 ILCS 5/12-3.05(b)(1).

When it comes to the applicable mental state of “knowing” conduct in this charge we can can say that…

“A person acts knowingly if he or she is consciously aware that his or her conduct is practically certain to cause great bodily harm.” ¶ 51.

The trial court erred by permitting the prosecutor to argue his erroneous understanding of the law to the jury and by prohibiting defense counsel from arguing her correct understanding of the law.

Final Words

And before I get out of here, I also want to point out that the case also did a great job of discussing the issue of balancing when to give a lesser included instruction.

Turns out the trial court was wrong on that issue as well and Lindsay Evans was right again.

Comments

Well done! The IPI jury instructions seem to be more problematic than giving simple instructions and simple definitions of laws. To leave any legal term, fact or legal fiction to be interpreted by a jury of 12 random strangers is to ask them to take the path of least resistence and simply vote guilty. It’s along the same lines of judges who overrule objections when they can’t figure out the right answer. Better to let testimony in than to show you’re not perfect.
Keep up the good work and nice work by Attorney Evans. Criminal Defense is thankless, tiring work but when it really works, it’s beautiful.

I guess if I had to verbalize a difference between intentional conduct and knowing conduct I would say this. Intentional conduct requires purposefully wanting to accomplish a particular result, while knowing conduct just requires that a person be practically certain that the result in question would occur.

Now, isn’t that helpful. Then, when you tell attorneys they don’t have to use the definitions at all, it’s just to easy to invent a definition that suits your purpose.